Thompson et al v. Social Security Administration

Filing 17

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate judgment will accompany this Order. Signed by District Judge John A. Ross on 3/30/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

THOMAS L. THOMPSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:14-cv-171-JAR

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Thomas L. Thompson’s (“Thompson”) application for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381, et seq.
I.

Background

On November 28, 2011, Thompson protectively filed an application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for
supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et
seq., alleging disability beginning April 1, 2009. The Social Security Administration denied
Thompson’s claim on March 28, 2012. Thompson filed a timely request for a hearing before an
administrative law judge (“ALJ”) on April 18, 2012. Following a hearing on September 25,
2013, the ALJ issued a written decision on October 28, 2013, upholding the denial of benefits.
(Tr. 12-19.) Thompson then requested review of the ALJ’s decision by the Appeals Council on

October 31, 2013 (Tr. 6), which request was denied. (Tr. 1-3.) Thus, the decision of the ALJ
stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Thompson filed the instant motion for review on December 1, 2014. (Doc. No. 1.) The
Commissioner filed an Answer.

(Doc. No. 9.)

Thompson filed a brief in support of his

complaint (Doc. No. 11) and the Commissioner filed a brief in support of the answer. (Doc. No.
16.) Thompson did not file a reply.
II.

Decision of the ALJ

The ALJ determined Thompson had not engaged in substantial gainful activity since
April 1, 2009, the alleged onset date. (Tr. 14.) The ALJ found Thompson had the severe
impairments of degenerative disc disease of the lumbar spine, status post microdiscectomy, and
status post hip surgery (Tr. 14-15), but that no impairment or combination of impairments met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 15.)
After considering the entire record, the ALJ determined Thompson had the residual
functional capacity (“RFC”) to perform light work, except that he must have an option to sit or
stand on an hourly basis, and he is limited to occasional stooping, kneeling, crouching or
crawling. Id. The ALJ found that, although Thompson is unable to perform any past relevant
work, there are jobs that exist in significant numbers in the national economy that Thompson can
perform, such as cashier, security guard, and factory inspector. (Tr. 17-18.) Thus, the ALJ
concluded Thompson has not been under a disability from April 1, 2009, through the date of the
decision. (Tr. 18.) Thompson appeals the ALJ’s decision, arguing that the ALJ’s evaluation is
not supported by substantial medical evidence and that the record is insufficiently developed.

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III.

Administrative Record

The following is a summary of the relevant evidence before the ALJ.
A.

Hearing Testimony

The ALJ held a hearing in this matter on September 25, 2013. Thompson testified and
was represented by counsel. Elizabeth Clem, vocational expert, also testified at the hearing. (Tr.
26.)
1.

Thompson’s testimony

At the time of the hearing, Thompson was 38 years old and living in government
housing. (Tr. 28, 32.) Thompson lives with his wife, Catherine, and their two children. He
owes regular child support to his first wife on behalf of the daughter they share together, who
was sixteen years old at the time of the hearing. (Tr. 30-32.) Thompson completed the ninth
grade in school and earned his GED. (Tr. 29.) Thompson receives food stamp benefits, and his
wife receives approximately $690 per month in Social Security disability benefits. (Tr. 32.)
Thompson was injured approximately a decade ago when he suffered a herniated disc and
a shattered pelvis following a car accident (described elsewhere in the record as a dirt bike
accident)1 wherein he collided with a tree. (Tr. 37-39.) Thompson required hip reconstruction
surgery. In addition to pain emanating from his hip injury, Thompson suffers from back pain
dating to an injury incurred whilst moving a refrigerator, for which he underwent surgery in
2005. He also suffers from pain in his left leg. Id. Thompson testified that the muscle
deterioration in his hip requires a hip replacement, but he has been unable to afford one. Id.
Thompson testified that as a result of his injury and back pain, he cannot run or jump, cannot lift
1

The Court notes that the record is somewhat underdeveloped with regard to the origin of
Thompson’s alleged impairments, and the Court is not able to fully reconcile the disparate
accounts of Thompson’s original injury. The disparities are not ultimately relevant to the
Court’s adjudication of this action.
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or carry things, and cannot push or pull things. He also cannot sit for an extended period of time
without pain. (Tr. 34.) Although he testified that he is emotionally stable, Thompson stated that
he has trouble with his memory and sometimes has trouble with attention and concentration. (Tr.
35.)
On a typical day, Thompson wakes up his children and gets them ready for school. (Tr.
36.) He assists in washing dishes from the evening before if necessary. He spends most of the
day watching television. Id. Thompson testified that he attends his daughter’s basketball games
on the weekends. He does not drink, but does smoke tobacco. Id.
2.

Testimony of vocational expert

Vocational expert Elizabeth Clem also testified at the hearing. In a hypothetical, the ALJ
asked Clem to assume a person of the same age, education, and work experience as Thompson
who is able to perform at the light exertional level with the following limitations: a requirement
to alternate between sitting and standing on an hourly basis, and only occasional kneeling,
stooping, crouching, or crawling. (Tr. 44.) Clem determined that such a person would be able to
perform a job such as cashier II, Dictionary of Occupational Titles (“DOT”) 211.462-010, SVP
of 2. (Tr. 44-45.) Clem estimated 12,000 such jobs are being performed in the state of Missouri.
Id. In addition, Clem testified that such a person could perform the job of security guard, DOT
211.462-010, SVP of 3, light work. Id. There are approximately 11,000 such jobs being
performed in the state of Missouri. Id. Finally, Clem testified that such a person could work as a
factory inspector, DOT 741.687-010, SVP of 2, light work.

In the state of Missouri,

approximately 1,500 such jobs exist. Clem testified that each of the jobs mentioned would allow
the worker to sit/stand on an hourly basis.

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In a second hypothetical, the ALJ asked Clem to assume the same factors identified
above. However, in the second hypothetical, the exertional capacity was reduced to sedentary
work. Clem testified that jobs exist in the state of Missouri that would meet such additional
criteria. Clem determined that such a hypothetical individual would be able to perform a job
such as dispatcher, DOT 959.167-010, SVP of 3. Clem estimated 1,100 such jobs are being
performed in the state of Missouri. In addition, such a person could perform the job of telephone
sales, DOT 299.357-014, SVP of 3. Clem estimated 3,100 such jobs are being performed in the
state of Missouri. And finally, Clem testified that such a person could perform the job of
machine tender, DOT 689.585.018, SVP of 2. Clem estimated 1,600 such jobs are being
performed in the state of Missouri.
B.

Medical Records

The ALJ summarized Thompson’s medical records at Tr. 15-17. Relevant medical
records are discussed as part of the analysis.
IV.

Standards

The Social Security Act defines as disabled a person who is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see
also Brantley v. Colvin, 2013 WL 4007441, at *2 (E.D. Mo. Aug. 2, 2013). The impairment
must be “of such severity that [the claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work

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exists in the immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). “If a claimant
fails to meet the criteria at any step in the evaluation of disability, the process ends and the
claimant is determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant
must not be engaged in “substantial gainful activity.” 20 C.F.R. §§ 416.920(a), 404.1520(a).
Second, the claimant must have a “severe impairment,” defined as “any impairment or
combination of impairments which significantly limits [claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. §§ 416.920(c), 404.1520(c). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. Id.
Before considering step four, the ALJ must determine the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as “the most a claimant
can do despite [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines whether the claimant can return to his

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past relevant work, by comparing the claimant’s RFC with the physical and mental demands of
the

claimant’s

past

relevant

work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1520(f),

416.920(a)(4)(iv), 416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant’s RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the
burden remains with the claimant to prove that he is disabled. Brantley, 2013 WL 4007441, at *3
(citation omitted). At step five, the burden shifts to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id. “The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Meyerpeter v. Astrue, 902 F. Supp. 2d 1219, 1229 (E.D. Mo. 2012) (citations
omitted).
The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner’s decision. Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2007). As long as substantial evidence supports the decision, the Court
may not reverse it merely because substantial evidence exists in the record that would support a
contrary outcome or because the court would have decided the case differently. See Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).

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To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
V.

Discussion

In his appeal of the Commissioner’s decision, Thompson alleges the ALJ erred because
his decision is not supported by substantial evidence on the record as a whole. Specifically,
Thompson alleges that the ALJ never explained in writing how he reached his RFC decision or
upon what medical findings he relied.

Thompson points out that the record contains no

functional capacity opinion from any treating or examining doctor. Thompson suggests that no
evidence from a treating or examining doctor comments on Thompson’s work-related
limitations, and that the ALJ improperly drew his own lay conclusions regarding Thompson’s
abilities. Thompson further argues that the ALJ’s failure to send Thompson for a consultative
evaluation, as specifically requested by Thompson at the conclusion of the hearing, indicates that
the ALJ failed to fully and fairly develop the record.
The Commissioner responds that the ALJ was not required to obtain a separate medical
opinion, and that the ALJ’s decision was supported by some medical evidence, including
objective medical evidence and contemporaneous treatment notations.

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The Commissioner

argues that the ALJ additionally relied on other substantial evidence, including Thompson’s own
account of his daily activities, his medicinal treatment history, and the observations of a lay
witness. Upon review, the Court finds substantial evidence in the record to support the ALJ’s
decision.
Support in the Record as a Whole
Thompson first alleges that the ALJ failed to explain the reasoning for his RFC decision,
and that the assigned RFC is not supported by medical evidence. A claimant’s RFC is “the most
a claimant can do despite [his] limitations.” Moore, 572 F.3d at 523. “The ALJ must assess a
claimant’s RFC based on all relevant, credible evidence in the record, ‘including the medical
records, observations of treating physicians and others, and an individual’s own description of
his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting McKinney v.
Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Although the ALJ is not limited to considering
medical evidence, “some medical evidence ‘must support the determination of the claimant’s
residual functional capacity, and the ALJ should obtain medical evidence that addresses the
claimant’s ability to function in the workplace.’” Hutsell v. Massanari, 259 F.3d 707, 712 (8th
Cir. 2001) (quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)).
Medical Evidence
The Court first concludes that the ALJ cited to sufficient medical evidence in determining
Thompson’s RFC. The ALJ noted, for example, that following Thompson’s L5-S1
microdiscectomy in 2005, Thompson’s neurological exam was normal except for a little
numbness, with good strength and reflexes. And although his treating physician suggested he
“get out of manual labor as an occupation,” (Tr. 224), Dr. Dasher did not suggest limitations on
Thompson’s ability to perform less demanding work.

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Id.

In March of 2011, during a

consultation with the Kennett Orthopedic Center, while postoperative changes to the hip and
femur were noted (Tr. 268), Thompson showed no sign of instability (Tr. 270). And in monthly
medical evaluations in the latter part of 2011, Thompson’s lumbar spine was repeatedly noted to
be “normal to palpitation without muscle spasms, tenderness or setoffs,” and although tenderness
was noted in his right hip and buttock, this was consistently noted as “mild-moderate.” See, e.g.,
Tr. at 285, 310.
This medical evidence is sufficient to support ALJ’s finding that Thompson can perform
light work, particularly where other evidence in the record is consistent with the ALJ’s
conclusions. See Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (upholding the ALJ's finding
that the plaintiff could perform light work based on largely mild or normal objective findings
regarding her back condition, despite the fact that the medical evidence was “‘silent’ with regard
to work-related restrictions such as the length of time she [could] sit, stand, and walk and the
amount of weight she can carry”); Flynn v. Astrue, 513 F.3d 788, 789 (8th Cir. 2008) (finding
that physicians’ observations that the claimant had normal muscle strength and mobility
constituted medical evidence supporting the ALJ’s conclusion that the claimant could lift 20
pounds occasionally and 10 pounds frequently).
Medication and Treatment
In tandem with the objective medical evidence, the ALJ also considered Thompson’s
somewhat noncompliant history with treatment and medication. Thompson’s records suggest
that his medications assisted in managing pain and improving daily function. (Tr. 281-282.)
Despite this record of success with medication, Thompson reported that he stopped taking his
medication, allegedly because he could not afford it. However, Thompson’s medical records also
suggest that he sought treatment from an emergency department on February 4, 2013, but left

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prior to being seen, which the ALJ found undermined his claims regarding his dedication to
treatment.

Thompson also refused to participate in a physical therapy regimen. (Tr. 274.)

Additionally, Thompson has not recently undergone active treatment; at the time of the ALJ’s
decision, there had been no treatment since 2011 (some two years).
“‘If an impairment can be controlled by treatment or medication, it cannot be considered
disabling.’” Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (quoting Brace v. Astrue, 578
F.3d 882, 885 (8th Cir. 2009)). See also Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009)
(“Impairments that are controllable or amenable to treatment do not support a finding of
disability.”); 20 C.F.R. §§ 404.1530(b), 416.930(b) (“If you do not follow the prescribed
treatment without a good reason, we will not find you disabled....”).
Thompson’s Subjective Complaints and Daily Activities
The ALJ also considered Thompson’s own descriptions of his limitations, writing that
“[t]he claimant reported that his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb
stairs, remember, concentrate, and use his hands have been affected,” and that “[t]he claimant
testified that his back problems have persisted.” (Tr. 15-16.) However, the ALJ explained that
while Thompson’s medically determinable impairments could reasonably cause the symptoms of
which Thompson complained, the ALJ determined that Thompson’s statements concerning the
intensity, persistence, and limiting effects of the symptoms were not credible.
When evaluating the credibility of a claimant’s subjective complaints, an ALJ must
consider several factors: “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness,
and side effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant's complaints.” Moore,

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572 F.3d at 524 (citing Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) and Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “‘An ALJ who rejects subjective complaints must
make an express credibility determination explaining the reason for discrediting the
complaints.’” Id. at 524 (quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)). However,
the ALJ need not explicitly discuss each factor. Id. (citing Goff, 421 F.3d at 791). It is sufficient
if the ALJ “‘acknowledges and considers the factors before discounting a claimant’s subjective
complaints.’” Id. The ALJ may not discount allegations of disabling pain solely because they
are not fully supported by the medical evidence, but such allegations may be found not credible
if they are inconsistent with the record as a whole. Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir.
2005).
Here, the ALJ gave significant weight to Thompson’s testimony regarding his daily
activities in determining that Thompson’s subjective complaints were not fully credible. For
example, the ALJ noted Thompson’s testimony that he prepares his two children for school each
day. Thompson also testified that he helps with dishes and attends sporting events for his
children (Tr. 36), and his self-reported Social Security Function Report states that he pays bills,
prepares food, empties the trash, shops, and has no problems with personal care (Tr. 168-171).
Finally, the ALJ also cited a third party observation from an agency employee in determining
Thompson’s credibility. A field office claims representative conducted a face-to-face interview
with Thompson in November 2011, and did not observe Thompson having any difficulty with
concentrating, sitting, standing, walking, or using his hands. (Tr. 157.) While a claimant “need
not prove she is bedridden or completely helpless to be found disabled,” Reed v. Barnhart, 399
F.3d 917, 923 (8th Cir. 2005) (internal quotation marks omitted), Plaintiff’s daily activities can
nonetheless be seen as inconsistent with his subjective complaints of a disabling impairment and

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may be considered in judging the credibility of his complaints. See Wagner v. Astrue, 499 F.3d
842, 852–53 (8th Cir. 2007) (finding a claimant’s accounts of “extensive daily activities, such as
fixing meals, doing housework, shopping for groceries, and visiting friends” supported the ALJ’s
conclusion that his complaints were not fully credible); Davis v. Apfel, 239 F.3d 962, 967 (8th
Cir. 2001) (“Allegations of pain may be discredited by evidence of daily activities inconsistent
with such allegations.”).
ALJ’s RFC Determination is Supported
In sum, the Court finds that the ALJ’s decision is supported by the record as a whole,
including sufficient medical evidence, Thompson’s history of medication and treatment, and his
subjective testimony and daily activities. As long as substantial evidence supports the ALJ’s
decision, the Court may not reverse it merely because substantial evidence exists in the record
that would support a contrary outcome or because the Court would have decided the case
differently. See Krogmeier, 294 F.3d at 1024 (finding substantial evidence in the record to
support the assigned RFC where ALJ relied on medical records, the opinion of a consulting
physician, claimant’s apparent lack of motivation, and claimant’s testimony regarding daily
activities). Therefore, the Court will affirm the ALJ’s decision.
Failure to Order Consultative Exam
Thompson next suggests that the ALJ failed to fully and fairly develop the record by not
sending Thompson for a consultative evaluation, as Thompson’s attorney requested. The ALJ
addressed the request for an orthopedic consultative examination in his opinion; he stated that he
denied the request “because the most recent evidence indicated that the claimant’s condition was
improving, and he was doing well . . . [t]here is no evidence of deterioration in his condition that
would warrant any further evaluation.” (Tr. 12.)

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In Goff, 421 F.3d at 791, the Eighth Circuit noted that an ALJ is not required to seek
additional clarifying medical evidence “unless a crucial issue is undeveloped” (citation omitted).
See also Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (finding that the ALJ was not
required to recontact the claimant’s treating physicians or obtain a consultative examination
where no “crucial issue” in the record required development); Halverson v. Astrue, 600 F.3d
922, 933–34 (8th Cir. 2010) (rejecting the plaintiff’s claim that the ALJ should have ordered a
consultative examination regarding her ability to function after he discredited her treating
doctor’s opinion; reasoning that the plaintiff’s medical records, statements, and other evidence
were sufficient to support the ALJ’s decision).
Here, the ALJ properly considered the above-listed evidence in light of the relevant
credibility factors, ultimately determining that Thompson could perform light work with some
additional limitations. It does not appear that any crucial issue was undeveloped, nor does it
appear that Thompson was prejudiced by the absence of additional evidence. “At the very least,
[a] claimant’s failure to provide medical evidence . . . should not be held against the ALJ when
there is medical evidence that supports the ALJ’s decision.” Steed, 524 F.3d at 876. The ALJ’s
decision is supported by such evidence and is reasonable in light of the record as a whole.
VI.

Conclusion

For the foregoing reasons, the Court finds the ALJ’s decision is supported by substantial
evidence contained in the record as a whole and, therefore, the Commissioner’s decision should
be affirmed.
Accordingly,

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IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice. A separate judgment will accompany this
Order.

____________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March, 2016.

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